HomeMy WebLinkAboutConsent to Encroach ApprovalEngineering Department
Attn: Jarrod Huff
Carmel City Hall
1 Civic Square
Carmel, IN 46032
Consent to Encroach Instructions
l Petitioners (and successors and assigns) agree to remedy any drainage issues resulting from the installation of the
improvement that, in the opinion of the City, represents a Detriment as defined in City Code
Print this document single sided (You do not need to print this instructions page). This is a requirement for
recording. Double sided prints will not be accepted.
Sign on page 3 and have a notary complete the bottom portion of this page.
Please mail or deliver the signed original copy to:
1)
2)
3)
Include a check for $28.25 payable to the City of Carmel for the recording fees. We will record the signed
document for you with Hamilton County after it has been approved.
4)
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Once we receive the signed agreement and check, I will place the document on our next Board of Public Works meeting
agenda. They will need to give final approval. We will recommend approval to the Board of Public Works with the
following conditions:
Petitioners enter into a Consent-to-Encroach Agreement with the City and record the Agreement (we will
record the agreement for you)
Petitioners shall obtain approval from the HOA for installation of the improvement if such approval is required by
the restrictive covenants of the development.
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WHEREAS, the official plat of the Subdivision was recorded in PC 4 SLIDE 751, Instrument Number 2012-1537 in
the Office of the Hamilton County Recorder on 01/10/2012, as VILLAGE OF WESTCLAY, section 10010B (the “Plat”);
and
WHEREAS, the current Owner wishes to install landscaping and hardscape on the Lot (the “Site Improvement”); and
WHEREAS, Owner has given the City a sketch (“Sketch”) depicting the location of the Site Improvement on the Lot, a
copy of which is attached hereto and incorporated herein by this reference as Exhibit B; and
WHEREAS, the Site Improvement will be constructed on portions of the Lot designated as Variable Drainage, Utility
and Sewer Easement , identified as "Var. DU&SE" on Exhibit B (the “Easement”); and
WHEREAS, the Easement is beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Site Improvement will encroach (the “Encroachment”) upon the Easement,
which Encroachment is crosshatched on Exhibit B; and
WHEREAS, City of Carmel Board of Public Works and Safety approves the Owner’s request for a variance from
Carmel City Code Section 6-227(4); and
WHEREAS, Owner and City acknowledge the location of the Encroachment; and
WHEREAS, Owner acknowledges that this Agreement does not imply any approval of existing or future improvements
not indicated by Owner on Exhibit B; and
WHEREAS, the location of the Site Improvement as indicated by the Owner on Exhibit B should not materially
interfere with the City’s use of the Easement.
CONSENT TO ENCROACH
THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between Everman, Robin G &
Matthew J McClain w&h, 2918 Gadsen Cir N, Carmel, Hamilton County, Indiana 46032, (individually and
collectively, "Owner"), and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works
and Safety
WITNESSETH:
WHEREAS, Owner owns in fee simple Lot 1020 ("Lot") in VILLAGE OF WESTCLAY, section 10010B, which
is located within the corporate limits of the City of Carmel, Indiana ("Subdivision"), which real estate is more
particularly described in Exhibit A, attached hereto and incorporated herein by the reference; and
The parties executing this Agreement represent and warrant that they are authorized to enter into and execute
this Agreement for and on behalf of the party which they represent.
9.
The foregoing preambles, recitations and definitions are made a part hereof as though such were fully
set forth herein.
1.
The City consents to the Encroachment for only so long as
(i) the Encroachment exists; and
(ii) Owner complies with all of the terms and provisions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein and
other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties mutually promise, agree and covenant as follows:
Owner covenants and agrees not to extend, increase, modify, alter, landscape, reconfigure or otherwise
change the Site Improvement from what is depicted on Exhibit B, and to maintain the Site Improvement in
good condition and repair.
2.
3.
4.Owner agrees that City shall have the right to remove any portion of the Site Improvement as City deems
necessary, in City's sole discretion, to install, protect and/or repair any utility lines, sewer lines or drainage
ditches located in the Easement, or for any other lawful purpose, and that, should the City take such action, the
City shall incur no obligation to repair, replace or reimburse Owner for the cost of any damages thereby caused
to the Site Improvment, the Lot, or to Owner
Owner agrees and acknowledges that the City’s consent to encroach upon the Easement, as provided in this
instrument, regards the City’s Easement interests only, and does not constitute permission or authority for the
Owner to otherwise enter on, in, under, over, or upon the property interests of any other person without that
person’s consent even if such property interests are also located within the Easement.
Owner agrees to indemnify and hold harmless City, its officers, officials, members, employees, invitees,
licensees and agents, from and against any and all losses, liabilities, damages, claims, judgments, attorney fees
and costs arising from any bodily injury and/or death, and from any destruction or damage to any property or
improvements, located on the Lot, or otherwise, and/or for any failure of proper disclosure pursuant to
Paragraph 12 hereof, which results directly or indirectly from any act of Owner, its employees, contractors
and/or agents in, on, under, across or to the Easement.
Owner agrees to reimburse City for any and all costs and expenses incurred by City to replace or repair any
damage to the Easement and any improvements located therein caused by the installation, construction,
maintenance and/or operation of the Site Improvement.
The parties agree that the terms of this Agreement shall be binding upon and inure to the benefit of their
respective heirs, administrators, successors and assigns.
5.
6.
7.
8.
This Agreement shall be effective as of the date on which it is last executed by a party hereto.10.
The Owner agrees to provide full disclosure of this Agreement to all persons, entities and others who acquire
by or through Owner any interest in the Lot on and after the effective date of this Agreement.
Owner agrees to remedy any drainage problems or issues, saturated soil or standing water on the Lot or
adjacent properties determined by the City to be resulting from the Encroachment.
Owner agrees not to alter the ground surface elevation within the limits of the easement at any time.
11.
12.
13.
"OWNER"
PROPERTY OWNER PROPERTY OWNER
Printed Name Printed Name
Signature Signature
Date:Date:
STATE OF INDIANA
COUNTY OF
)
) SS:
)
Before me, a Notary Public in and for said County and State, personally appeared
by me known, and who acknowledged the execution of the foregoing "CONSENT TO ENCROACH ' as his or
her voluntary act and deed.
Witness my hand and Notarial Seal this ____ day of ______________________, 20___.
NOTARY PUBLICMy Commission Expires:
Printed Name
My County of Residence:
"CITY"
CITY OF CARMEL, INDIANA,
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
BY:
James Brainard, Presiding Officer
Mary Ann Burke, Member
Lori Watson, Member Sue Wolfgang, Clerk
Date:
Date:
Date:Date:
STATE OF INDIANA
COUNTY OF HAMILTON
)
) SS:
)
Before me, a Notary Public in and for said County and State, personally appeared JAMES BRAINARD,
MARY ANN BURKE and LORI WATSON, by me known, and by me known to be the Members of the City of
Carmel Board of Public Works and Safety, and Sue Wolfgang, Clerk of THE CITY OF CARMEL, who
acknowledged the execution of the foregoing “CONSENT TO ENCROACH” on behalf of the City of Carmel,
Indiana.
Witness my hand and Notarial Seal this _____ day of ______________, 20__.
NOTARY PUBLICMy Commission Expires:
Printed Name
My County of Residence:
This instrument was prepared by Jon Oberlander, Esquire, Assistant Corporation Counsel, One Civic Square, Carmel,
Indiana 46032.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security Number in this
document, unless required by law. Jon Oberlander, Esquire
Caption
Exhibit B